Docket: IMM-9472-04
Toronto, Ontario, December 20th, 2005
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
JOSE MARIA MARQUEZ
MARITZA JANNETT CEDENO PENA
MARITZA CAROLINA MARQUEZ CEDENO
JOSE GUSTAVO MARQUEZ CEDENO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant was involved in politics and worked for President Peres prior to the coup whereby Hugo Chavez took power. In 1992, he opened a business as a custom broker and donated 10% of his profits to the political party Action Democratica. He began to experience problems once Hugo Chavez won the election . These problems included having police officers and government officials asking for bribes or information. He claims that on April 2, 1999, two men attempted to kidnap his daughter when her mother picked her up from school. Shortly after this, his wife and children left for Mexico and he subsequently joined them. They then decided to live in the US. They stayed in the US from June 1999 to December 2003.
[2] During that time, the Applicant returned to Venezuela twice, once to renew his wife's and his son's passports and once to ascertain if the situation causing him to flee had resolved itself or could be resolved (such that the family could return to Venezuela). On December 19th, 2003 they came to Canada and claimed refugee status.
[3] The Immigration and Refugee Board (" Board") denied the claim finding the Applicant not credible. The Board found that the Applicant was in fear of crooked policeman not the government. Secondly his two trips back to Venezuela as well as his four year sojourn in the US without claiming refugee status undermined the legitimacy of his claim.
[4] The Applicant seeks judicial review of the Board's decision claiming it:
a) failed to understand his claim, it is not fear for himself but for his children that caused him to flee. The Board failed to analyse this; and
b) failed to conduct a section 97 analysis.
[5] The issue in this case revolves around the degree of nexus between the Applicant's experiences and a fear of persecution. With respect to the applicable standard of review, De Montigny J. in Mendoza v. Canada (Minister of Citizenship and Immigration), 2005 FC 634 at paragraph 16 made the following determination, with which I fully concur:
Before dealing with the two issues raised by this application for judicial review, we must determine the proper standard of review. Both of these issues involve questions of mixed fact and law. Previous decisions from this court have applied the pragmatic and functional approach to each one of these questions and have concluded that the appropriate standard of review in both cases is reasonableness simpliciter: Chaves v. Canada (MCI),[2005] F.C.J. No. 232 and Jayesekara v. Canada (MCI),2001] F.C.J. No. 1393.
With respect to the question as to whether extortion can amount to persecution for the purposes of the Refugee Convention, I don't think there is much debate that it can in certain circumstances. Counsel for the Respondent readily admitted that proposition, and there are numerous decisions to that effect (see, for ex., Ponnuthurai v. Canada (MCI),2004] F.C.J. No. 1009, Nadarajah v. Canada (MCI),[2004] F.C. 796); Packiam et al v. Canada (MCI), [2004] F.C.J. No. 779,. Clearly, the extortion will have a nexus with one of the grounds enumerated in the Convention if it was politically motivated or was somehow related to the race, nationality, social group or religion of the person being the victim of extortion.
[6] The Board's finding regarding his s. 96 claim in so far as his personal safety was concerned, was totally reasonable. The Applicant's two return trips to Venezuela contradict any fear of persecution in Venezuela.
[7] His four year sojourn in the US and his explanations for the stay are simply not credible. During four years as an illegal immigrant, he surely could have found out that the US has a refugee program.
[8] However in my view, the Board misapprehended the nature of the claim under s. 97. Both the Applicant and his wife, who was the designated representative for the children, stated in their PIF and in their testimony before the Board that the reason for fleeing Venezuela was fear for their children. They fled because they feared their children will be kidnapped.
[9] Whether this fear is well substantiated or credible is something that the Board has to decide and it is not for me to express a view on this point. However, this issue is never even mentioned by the Board let alone discussed in any detail. The Board's decision only speaks of the Applicant, it never refers to the wife, the designated representative of the children nor the alleged threat of danger to the children. Under these circumstances, I cannot find that its decision to deny their claim under s. 97 is reasonable.
[10] Accordingly, this application will succeed and the matter is referred back to the Board for reconsideration.
ORDER
THIS COURT ORDERS that the decision of the Board dated October 25, 2004 is set aside and the matter referred back to the Board for reconsideration by a differently constituted panel.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: JOSE MARIA MARQUEZ
MARITZA JANNETT CEDENO PENA
MARITZA CAROLINA MARQUEZ CEDENO
JOSE GUSTAVO MARQUEZ CEDENO
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 19, 2005
REASONS FOR ORDER: VON FINCKENSTEIN J.
APPEARANCES:
Jose Maria Marquez
Maritza Jannett Cedeno Pena FOR THE APPLICANTS
Janet Chisholm
Mr. John Pro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jose Maria Marquez
St. Catherines, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.